Judicial Diversity on State Supreme Courts

CASTIGLIONE_ACQUAVIVA (FINAL EDIT) (DO NOT DELETE) 2/4/2010 10:24 AM Judicial Diversity on State Supreme Courts ∗ ∗∗ Gregory L. Acquaviva & John D. Castiglione ABSTRACT State courts of last resort are, in many ways, the primary expositors of law in the United States. Much of the law that affects people on an everyday basis—criminal law, contracts, family law, wills, trusts, and estates, just to name a few—fall within their purview. And yet we know surprisingly little about just who sits on these courts. Indeed, state supreme court judges have been aptly described as “perhaps the most important and least written about group within the judicial system” of the United States. There is little information regarding the composite characteristics of the jurists on state courts of last resort, and the last study on the characteristics and experiences of the state supreme court justices is twelve years old. In this Article, we present the findings of a comprehensive examination of the demographic and experiential characteristics of all judges on the courts of last resort of the fifty states. The most important part of this examination was a survey developed for this project and submitted to every state supreme court justice in the country. In this survey, we asked the justices to self-report information regarding race, gender, religion, schooling, prior work experience, community involvement, bar association membership, and pro bono experience. The raw data we collected through this survey, augmented by publicly available resources, are presented throughout and as addenda to this Article. ∗ Judicial Law Clerk, United States Court of Appeals for the Third Circuit. ∗∗ Associate, Latham & Watkins LLP. The authors would like to thank David Brodsky, David V. Simunovich, Laura Tolan, Jenna Bernstein, Navin Pal, and Elizabeth Legere for their assistance and advice in the writing of this Article. A special thank you is also due to Professor John B. Wefing of Seton Hall University School of Law, whose prior scholarship served as the inspiration for this piece and who graciously encouraged and supported this endeavor. See John B. Wefing, State Supreme Court Justices: Who Are They?, 32 NEW ENG. L. REV. 49 (1997). 1203 CASTIGLIONE_ACQUAVIVA (FINAL EDIT) (DO NOT DELETE) 2/4/2010 10:24 AM 1204 SETON HALL LAW REVIEW [Vol. 39:1203 I. INTRODUCTION The nomination of Sonia Sotomayor to the Supreme Court of the United States was, in many ways, a culmination of two historic trends: the rise of racial minorities in American government and law, and the rise of female attorneys to the highest reaches of the judiciary. Nominated by the first African-American president, Justice Sotomayor’s confirmation as the first Hispanic Justice—and only the third female Justice—was hailed by many as a watershed moment in American legal history. And yet, Justice Sotomayor’s nomination was in many respects not very remarkable at all. In ways less noticeable to the naked eye, Justice Sotomayor is utterly typical. Like every Justice on the Supreme Court today (save one), she attended an Ivy League law school.1 Like every Justice on the Court today, she sat on a United States circuit court when nominated to the high court.2 Like many Justices in the recent past, she spent time as a prosecutor and had significant experience in private practice.3 And, like five of her colleagues on the Court, she is Catholic.4 What we can take from Justice Sotomayor’s elevation to the Supreme Court is that the demographic and experiential characteristics of the American judiciary are more complex than they first appear. And we learn (or at least we should learn) that easy heuristics can be deceiving and, perhaps, irrelevant. For instance, is it more salient that a particular jurist is, say, Hispanic, or that she spent many years in private commercial practice? Does it matter more that a jurist is male or that he went to a local college and law school? Does it matter where on the political spectrum a judge places himself? Does any demographic characteristic matter more than a judge’s prior legal or professional experience? And, of course, the 1 Biographies of Current Members of the Supreme Court, http://www.supremecourtus.gov/about/biographiescurrent.pdf (last visited Jan. 10, 2010) [hereinafter Official Biographies]. The lone exception, Justice John Paul Stevens, graduated from Northwestern University School of Law. Like three of her colleagues, Justice Sotomayor also attended an Ivy League undergraduate institution. Id. Three of her non-Ivy League colleagues attended Georgetown or Stanford as undergraduates. Id. 2 Id. 3 Press Release, The White House, Judge Sonia Sotomayor, (May 26, 2009), available at http://www.whitehouse.gov/the_press_office/Background-on-Judge- Sonia-Sotomayor/. 4 Laurie Goodstein, Sotomayor Would Be Sixth Catholic Justice, but the Pigeonholing Ends There, N.Y. TIMES, May 31, 2009, at A20. CASTIGLIONE_ACQUAVIVA (FINAL EDIT) (DO NOT DELETE) 2/4/2010 10:24 AM 2009] JUDICIAL DIVERSITY 1205 question of ultimate concern: does any of this have any significant effect on how judges decide cases? One thing is certain—it is impossible to approach these questions unless we know just who populates the American judiciary. Once one moves beyond the easy categories of race and gender and tries to dig down into the less obvious characteristics of religion, schooling, prior work experience, voluntary associations, and ideological orientation, it is surprisingly difficult to find out just who the individuals are underneath the robes. But without at least some level of appreciation of these types of characteristics, it would be impossible to even attempt to describe the American judiciary in any reasonably complete (or interesting) way. Much information has long been available on the characteristics of federal judges. While the federal bench is vast,5 it is relatively well understood. Two factors are largely responsible for this. First, the requirement of Senate confirmation for federal judges tends to elicit a fair degree of public disclosure of information about the nominee. Second, the perceived importance of the federal judiciary (and the focus on federal issues in legal scholarship and legal teaching) leads to more attention given to federal courts, at least in comparison to their state counterparts. The increased focus on the ideological shifts of the federal bench as a result of changing presidential administrations has led to several recent efforts to catalogue the federal bench and quantify the characteristics of those who sit on it.6 Such has not been the case for the state judiciary. Historically, little attention has been paid to the aggregate characteristics of state courts of last resort. In some sense this is understandable. There are, depending on how one counts, approximately 350 justices on state 5 The federal judicial system is composed of thirteen circuit courts, ninety-four district courts, and ninety-four bankruptcy districts. U.S. Courts, Courts of Appeals, http://www.uscourts.gov/courtsofappeals.html (last visited Jan. 10, 2010); U.S. Courts, District Courts, http://www.uscourts.gov/districtcourts.html (last visited Jan. 10, 2010). In addition, the United States Tax Court is composed of nineteen presidentially appointed members. U.S. Tax Court, About the Court, http://www.ustaxcourt.gov/about.htm. 6 See generally Theresa M. Beiner, Diversity on the Bench and the Quest for Justice for All, 33 OHIO N.U. L. REV. 481 (2007) (discussing different ways of defining diversity in the judicial appointment context); Kevin R. Johnson & Luis Fuentes-Rohwer, A Principled Approach to the Quest for Racial Diversity on the Judiciary, 10 MICH. J. RACE & L. 5 (2004) (analyzing the benefits of increased racial diversity on the bench); Rorie Spill Solberg, Court Size and Diversity on the Bench: The Ninth Circuit and its Sisters, 48 ARIZ. L. REV. 247, (2006) (analyzing diversity on the bench with an emphasis on the United States Court of Appeals for the Ninth Circuit). CASTIGLIONE_ACQUAVIVA (FINAL EDIT) (DO NOT DELETE) 2/4/2010 10:24 AM 1206 SETON HALL LAW REVIEW [Vol. 39:1203 courts of last resort,7 and excepting a few prominent courts (such as the California Supreme Court, Delaware Supreme Court, New Jersey Supreme Court, and New York Court of Appeals), most are overlooked by legal commentators.8 This is an unfortunate gap in knowledge. State supreme court justices9 have been referred to as “perhaps the most important and least written about group within the judicial system in this country.”10 State courts of last resort have been, and continue to be, primary expositors of the areas of law that affect Americans in an “everyday” fashion; contract, criminal, estate, and family law are just some of the areas that are largely defined by state courts.11 These courts’ influence goes beyond just “state law” issues; for instance, federal courts (and the Supreme Court in particular) are often fond of “nose 7 As of the date of publication, and for our purposes, there are 342 state supreme court justices in the United States sitting on the fifty-two courts of last resort in the United States, as determined via a review of each state’s official court rosters. Oklahoma and Texas have two courts of last resort. Each has a Supreme Court and a Court of Criminal Appeals. See The Oklahoma State Court Network, http://www.oscn.net/applications/oscn/start.asp?viewType=Courts (last visited Jan. 10, 2010); Texas Courts Online, http://www.courts.state.tx.us/ (last visited Jan. 10, 2010). While the District of Columbia Court of Appeals functions as a “state” court of last resort, it stands apart from other such courts in that its members are appointed by the President of the United States. See Inez Smith Reid, From Birth to the Bench: A Quiet but Persuasive Leader, 68 ALB.

Load more